Terms of service
General terms of delivery
to the validity opposite our customers (entrepreneurs)
(1) All deliveries, services and offers of the Seller shall be based exclusively on these General Terms of Delivery. These are an integral part of all contracts which the Seller concludes with his contractual partners (hereinafter also referred to as "Principal") for the deliveries or services offered by him. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.
(2) Terms and conditions of the Customer or third parties shall not apply, even if the Seller does not separately object to their validity in individual cases. Even if the Seller makes reference to a letter containing or referring to the terms and conditions of the Customer or a third party, this shall not constitute an agreement with the validity of those terms and conditions.
2 Offer and conclusion of contract
(1) All offers of the seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific period of acceptance. The Seller may accept orders or assignments within fourteen days of receipt.
(2) Solely decisive for the legal relationship between the Seller and the Customer is the purchase contract concluded in writing, including these General Terms of Delivery. This contract fully reflects all agreements between the parties to the contract on the subject matter of the contract. Oral promises made by the Seller prior to the conclusion of this contract are legally non-binding and oral agreements between the contracting parties shall be replaced by the written contract unless it is expressly stated in each case that they shall continue to apply with binding effect.
(3) Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing to be effective. With the exception of managing directors or authorized signatories, the Seller's employees are not entitled to make oral agreements deviating from this. To comply with the written form, transmission by telefax shall be sufficient, otherwise telecommunication transmission, especially by e-mail, shall not be sufficient.
(4) Information provided by the Seller on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics of quality, but descriptions or identifications of the delivery or service. Deviations customary in the trade and deviations which are due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible, provided they do not impair the usability for the contractually intended purpose. The Seller reserves the right to exceed or fall short of the quantity ordered by a customary commercial quantity of 10 %.
(5) The Seller reserves the title or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Customer. Without the express consent of the Seller, the Customer may not make these items available to third parties, make them known, use them himself or have them used or reproduced by third parties, either as such or in terms of their content, without the express consent of the Seller. At the request of the Seller, he shall return these objects in full to the Seller and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
3 Prices and payment
(1) The prices are valid for the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. The prices are in EURO ex works plus packaging, shipping (shipping flat rate), the statutory value added tax, customs duties for export deliveries as well as fees and other public charges.
(2) Insofar as the agreed prices are based on the Seller's list prices and delivery is not to take place until more than four months after conclusion of the contract, the Seller's list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
(3) Invoice amounts are to be paid within thirty days without any deductions, unless otherwise agreed in writing. The date of receipt by the Seller shall be decisive for the date of payment. Cheques shall only be considered as payment after they have been cashed. If the client does not pay on the due date, the outstanding amounts shall bear interest at 5% p.a. from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(4) Offsetting against counterclaims of the Customer or withholding of payments due to such claims shall only be permitted if the counterclaims are undisputed or have been established as final and absolute.
(5) The Seller shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, the Seller becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Customer and as a result of which the payment of the Seller's outstanding claims by the Customer from the respective contractual relationship (including from other individual orders to which the same framework agreement applies) is endangered.
4 Delivery and delivery time
(1) Deliveries shall be ex works.
(2) Deadlines and dates for deliveries and services promised by the Seller are always approximate unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(3) The Seller may - without prejudice to his rights arising from default on the part of the Customer - demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period of time during which the Customer does not fulfil his contractual obligations to the Seller.
(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lock-outs, shortage of labour, energy or raw materials, difficulties in procuring necessary official permits, official measures or the failure of, incorrect or untimely delivery by suppliers) for which the Seller is not responsible. If such events make the delivery or service considerably more difficult or impossible for the seller and the hindrance is not only of temporary duration, the seller is entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to the seller.
(5) The seller is only entitled to make partial deliveries if
- the partial delivery can be used by the customer within the scope of the contractual purpose,
- the delivery of the remaining ordered goods is ensured and
- the client does not incur any significant additional work or costs as a result (unless the seller agrees to bear these costs)
(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for him, for whatever reason, the Seller's liability for damages shall be limited in accordance with § 8 of these General Terms of Delivery.
(7) The return of faultless goods without a legal or contractually agreed reason requires our prior consent. In the event that goods are taken back for reasons which are not due by law, contract or otherwise, the Seller may claim a flat rate of 25% of the net invoice amount of the goods taken back as lost profit. The Buyer shall be entitled to prove that the Seller has not incurred any loss or a lower loss. In addition to the loss of profit, the Buyer shall bear the costs of the re-storage of the goods at the Seller's premises.
5 Place of performance, dispatch, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from the contractual relationship is the registered office of the Seller, unless otherwise specified. If the Seller is also responsible for installation, the place of performance shall be the place where installation is to take place.
(2) The method of dispatch and packaging shall be at the discretion of the Seller.
(3) The risk shall pass to the Customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or the Seller has assumed other services (e.g. dispatch or installation). If dispatch or handover is delayed as a result of a circumstance the cause of which lies with the client, the risk shall pass to the client from the day on which the delivery item is ready for dispatch and the seller has notified the client of this.
(4) Storage costs after the transfer of risk shall be borne by the customer. In the event of storage by the seller, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per week elapsed. We reserve the right to assert and prove further or lower storage costs.
(5) The Seller shall insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Customer and at his expense.
(6) Insofar as acceptance is to take place, the object of purchase shall be deemed to have been accepted if
- the delivery and, if the seller also owes the installation, the installation is completed,
- the Seller has notified the Customer of this with reference to the fiction of acceptance in accordance with this § 5 (6) and has requested the Customer to accept the goods,
- seven working days have elapsed since delivery or installation or the customer has started to use the object of purchase (e.g. has put the delivered equipment into operation) and in this case six working days have elapsed since delivery or installation, and
- the customer has failed to accept the goods within this period of time for any reason other than a defect notified to the seller which makes the use of the purchased goods impossible or significantly impairs their use.
6 Warranty, material defects
(1) The warranty period shall be one year from delivery or, where acceptance is required, from acceptance.
(2) The delivered items shall be carefully examined immediately after delivery to the customer or to the third party designated by the customer. They shall be deemed to have been approved unless the Seller has received a written notice of defects in the manner specified in § 2 (2) sentence 6 in respect of obvious defects or other defects which were recognisable in an immediate, careful inspection within two working days of delivery of the object of delivery or otherwise within seven working days of the discovery of the defect or any earlier point in time at which the defect was recognisable to the Customer in the normal use of the object of delivery without closer inspection. At the request of the Seller, the delivery item complained about shall be returned to the Seller carriage paid. If the complaint is justified, the Seller shall reimburse the costs of the most favourable dispatch route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of use as intended.
(3) In the event of material defects in the delivered items, the Seller shall be obliged and entitled to choose within a reasonable period of time whether to repair or replace the goods. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is due to the Seller's fault, the Customer may claim damages under the conditions set out in § 8.
(5) In the case of defects in components from other manufacturers which the Seller cannot remedy for reasons of licensing law or for factual reasons, the Seller shall, at his discretion, either assert his warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. Warranty claims against the Seller for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or, for example, due to insolvency, is futile. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the customer against the seller is suspended.
(6) The warranty shall not apply if the customer modifies the delivery item or has it modified by a third party without the consent of the seller and the elimination of the defect is thereby rendered impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of remedying the defect arising from the modification.
(7) A delivery of used objects agreed with the customer in individual cases shall be effected to the exclusion of any warranty for material defects.
7 Property rights
(1) In accordance with the provisions of this § 7, the Seller warrants that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it for infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller shall, at its option and at its expense, either modify or replace the delivery item in such a way that no more third-party rights are infringed, but the delivery item continues to perform the contractually agreed functions, or procure the right of use for the Customer by concluding a licence agreement. If he does not succeed in doing so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the client are subject to the restrictions of § 8 of these General Terms and Conditions of Delivery.
(3) In the event of infringements of rights by products of other manufacturers supplied by the Seller, the Seller shall, at his discretion, either assert his claims against the manufacturers and sub-suppliers for the account of the Customer or assign them to the Customer. In these cases, claims against the Seller shall only exist in accordance with the provisions of this § 7 if the legal enforcement of the above-mentioned claims against the manufacturers and sub-suppliers was unsuccessful or, for example due to insolvency, is futile.
8 Liability for damages due to fault
(1) The Seller's liability for damages, regardless of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this § 8 to the extent that fault is involved.
(2) The Seller shall not be liable in the event of simple negligence on the part of his organs, legal representatives, employees or other vicarious agents, provided that it is not a matter of a breach of duties essential to the contract. Essential contractual obligations are the obligation to timely delivery and installation of the delivery item free of essential defects as well as consulting, protection and care obligations which are intended to enable the Customer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the Customer's personnel or to protect its property from substantial damage.
(3) Insofar as the Seller is liable for damages on the merits pursuant to § 8 (2), this liability shall be limited to damages which the Seller foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which he should have foreseen if he had exercised due diligence. Indirect damages and consequential damages resulting from defects of the delivery item are furthermore only compensable to the extent that such damages are typically to be expected when the delivery item is used for its intended purpose.
(4) In the event of liability for simple negligence, the Seller's obligation to pay compensation for damage to property and resulting further financial losses shall be limited to an amount of EUR 5,000,000 per claim (corresponding to the current cover amount of his product liability insurance or liability insurance), even if it concerns a breach of material contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favour of the Seller's organs, legal representatives, employees and other vicarious agents.
(6) Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by him, this shall be done free of charge and to the exclusion of any liability.
(7) The limitations of this § 8 do not apply to the liability of the Seller due to intentional behaviour, for guaranteed characteristics, due to injury to life, body or health or according to the Product Liability Act.
9 Retention of title
(1) The retention of title agreed in the following serves to secure all current and future claims of the Seller against the Buyer arising from the supply relationship between the contracting parties (including balance claims from a current account relationship limited to this supply relationship).
(2) The goods delivered by the Seller to the Buyer shall remain the property of the Seller until full payment of all secured claims. The goods as well as the goods taking their place according to this clause and covered by the retention of title are hereinafter referred to as goods subject to retention of title.
(3) The Buyer shall store the goods subject to retention of title free of charge for the Seller.
(4) The Buyer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realisation (paragraph 9). Pledging and transfer of ownership by way of security are not permitted.
(5) If the goods subject to retention of title are processed by the Buyer, it is agreed that the processing is carried out in the name and for the account of the Seller as manufacturer and that the Seller directly acquires ownership or - if the processing is carried out using materials from several owners or the value of the processed item is higher than the value of the goods subject to retention of title - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that no such acquisition of ownership should occur with the seller, the buyer transfers already now his future ownership or - in the above mentioned ratio - co-ownership of the newly created object to the seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Seller shall, insofar as the main item belongs to him, transfer to the Buyer proportionate co-ownership of the uniform item in the ratio specified in sentence 1.
(6) In the event of the resale of the goods subject to retention of title, the Buyer hereby assigns to the Seller by way of security the claim against the purchaser arising from this resale - in the case of the Seller's co-ownership of the goods subject to retention of title in proportion to the share of co-ownership. The same applies to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. The seller revocably authorizes the buyer to collect the claims assigned to the seller in his own name. The seller may only revoke this direct debit authorization in the event of utilization.
(7) If third parties seize the goods subject to retention of title, in particular by attachment, the Buyer shall immediately inform them of the Seller's ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the court or out-of-court costs incurred in this connection, the Buyer shall be liable to the Seller for this.
(8) The Seller shall, upon request, release the goods subject to retention of title and the items or claims taking their place at his discretion, provided their value exceeds the amount of the secured claims by more than 50%.
(9) If the Seller withdraws from the contract in case of breach of contract by the Buyer - in particular default of payment - the Seller shall be entitled to demand the return of the reserved goods.
10 Final provisions
(1) The place of jurisdiction for all possible disputes arising from the business relationship between the Seller and the Client shall be, at the Seller's option, the Seller's registered office or the Client's registered office. For legal actions against the Seller, the registered office of the Seller shall be the exclusive place of jurisdiction. Mandatory legal provisions regarding exclusive places of jurisdiction remain unaffected by this provision.
(2) The relations between the seller and the client are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.
The client acknowledges that the seller stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transfer the data to third parties (e.g. insurance companies) if necessary for the fulfilment of the contract.